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Interlocutory Decisions : 2001

2001-03-29

LET-AT-R-166-2001

File No. U3570/00-81

By Decision No. LET-AT-R-80-2001, dated February 22, 2001, the Canadian Transportation Agency (Agency) confirmed that it has jurisdiction to consider the application filed by the Council of Canadians with Disabilities (CCD) and that it was proceeding with its investigation. The Agency is aware that VIA Rail Canada Inc. (VIA) has filed a motion for leave to appeal with the Federal Court regarding this and other Agency Decisions. However, the motion for leave to appeal has yet to be considered by the Court. Furthermore, neither VIA nor CCD has requested a stay of the Agency's proceedings.

Production of documents

By Decision No. LET-AT-R-35-2001 dated January 24, 2001, the Agency required VIA to file with the Agency and provide a copy to CCD of any and all proposals and plans for the construction or retrofit of the Nightstock cars, as well as its schedule for the assembly, construction and retrofit of the Nightstock cars as soon as they are available.

By letter dated January 31, 2001, VIA raised a number of objections to these filing requirements.

The Agency notes that by letter dated January 17, 2001, VIA states that it has no schedule, written or otherwise, for the retrofitting, modification or construction of its Nightstock cars. It is anticipated that 24 Nightstock cars will be commissioned for use by the end of December 2001.

By Decision No. LET-AT-R-80-2001 dated February 22, 2001, the Agency clarified the information it required and stated that it requires information regarding the eventual configuration of the Nightstock cars, including plans if they contain such information. Any subsequent changes to any information filed with the Agency by VIA must also be provided to CCD. Further, by Decision No. LET-AT-R-81-2001 dated February 22, 2001, the Agency required VIA "to confirm that it will provide information to the Agency, to be copied to CCD, that will indicate when it will commence retrofitting or constructing the Nightstock cars."

VIA states in its affidavit in support of its leave to appeal before the Federal Court that "The final design of the Nightstock trains has not been determined."

By letter dated February 23, 2001, VIA responded to the Agency direction to confirm that it will provide information to the Agency:

Regarding the Agency's request that VIA Rail file plans or schedules dealing with retrofitting and construction of the Nightstock cars, no retrofit plans or construction plans have been prepared. VIA Rail has no fixed time when such plans will be available.

By Decision No. LET-AT-R-107-2001 dated March 5, 2001, the Agency stated that VIA is unresponsive to Agency Decision No. LET-AT-R-81-2001 dated February 22, 2001. VIA has not confirmed whether it will provide the Agency with the required information.

By letter dated March 8, 2001, VIA asked the Agency to reconsider its comment that VIA has been unresponsive.

The Agency, in Decision No. LET-AT-R-107-2001, was not commenting on the responsiveness of VIA to all submissions filed in these proceedings, but was referring to the specific answer given by VIA to a specific question posed by the Agency. The Agency appreciates the timely submissions that have been filed by the parties who have often had to respond to Agency requests in very short time frames.

The Agency must be satisfied that once the information that it has directed to be filed becomes available, that VIA will provide such information to the Agency. Accordingly, VIA is hereby required to respond to the following two questions to the Agency by 5:00pm March 30, 2001, and provide a copy to CCD:

1. Will VIA provide information to the Agency, once it is available, indicating when the retrofitting or construction of the cars will commence?

2. When the final design of the Nightstock trains has been determined, will VIA provide it to the Agency?

Clarification and additional information

In its letter dated January 3, 2001, VIA explains that the Nightstock trains are comprised of 64 cars which are now "substantially" completed and has parts to assemble a further 75 cars. VIA states that the equipment purchase is designed to form a single train consist containing three to eight cars, including one service car, coaches and sleepers. VIA adds that there will always be a service car in each train consist. VIA states that the trains will be used in the overnight run between Montréal and Halifax, between Montréal and Toronto, and some day services in the Windsor/Quebec corridor. VIA also intends to continue the operation of its existing fleet.

As indicated above, VIA anticipates that 24 Nightstock cars will be commissioned for use by the end of December 2001. Five cars were to leave England on January 25, 2001, with the next 24 cars in mid-February 2001. In addition, 50 containers full of parts were to be shipped from England by February 7, 2001.

By letter dated March 9, 2001, VIA submitted to the Agency a copy of John Marginson's affidavit in support of VIA's motion for leave to appeal. Mr. Marginson, Vice-President, Capital Program and Business Development of VIA, states in the affidavit that the Nightstock service cars offer enhanced access for persons with disabilities. He adds that the service car's special facilities include sleeping accommodation for two, an accessible washroom, wide door access and a wheelchair tie-down.

In light of the above, VIA is required to provide the following clarification and additional information by March 30, 2001, along with a copy to CCD:

1. Although the cars may now be "substantially" completed, indicate whether any further modifications needed to these 24 cars prior to going into service will involve any accessibility features of the cars, either those already in place, as mentioned above, or any new ones.

2. Indicate whether it will be possible for the Nightstock cars to be coupled with its existing fleet.

Intervener

Mr. James T. Lyon, Q.C., on behalf of Transport 2000 Canada (T2K), has filed with the Agency the enclosed submission dated February 23, 2001.

CCD and VIA have until April 2, 2001 to reply to the Agency and at the same time serve a copy on each other and the intervener.

Replacement of VIA letter

By letter dated January 3, 2001, VIA refers to another letter of the same date that was included in a bound volume mailed to the Agency. VIA indicates that there were several typographical changes made to the letter and as such, requests that the Agency replace the letter in each of the volumes with the signed version forwarded with its January 3, 2001 submission.

The Agency has placed the signed and amended letter dated January 3, 2001 on the file and in each of the volumes submitted by VIA instead of the original letter of the same date.

Statutory deadline

Subsection 29(1) of the CTA states that

The Agency shall make its decision in any proceedings before it as expeditiously as possible, but no later than one hundred and twenty days after the originating documents are received, unless the parties agree to an extension or this Act or a regulation made under subsection (2) provides otherwise.

In this case, the statutory deadline for the issuance of the Agency's decision is April 3, 2001.

To date, many issues have arisen over the course of these proceedings. For the most part, the Agency has had to request that the parties respond to these issues within short time frames. The Agency notes that the parties have always promptly responded to these short deadlines. However, it is apparent that the Agency cannot complete its investigation of CCD's application by April 3, 2001. This is particularly so, as VIA has informed the Agency that some of the information required by the Agency is not presently available.

In light of the above, the Agency is seeking your concurrence to extend the statutory deadline. Your response by March 30, 2001 is required, as to whether you agree to extend the statutory deadline.